Deeks on Self-Defense and Pakistani Sovereignty

by Duncan Hollis

I suspect that many of our readers already receive ASIL Insights, but for those of you who do not, I wanted to flag the release yesterday of Pakistan’s Sovereignty and the Killing of Osama Bin Laden by Ashley Deeks, a former colleague of mine in the Legal Adviser’s Office at the U.S. State Department. Deeks is now a fellow at Columbia Law School, but until recently served as the Assistant Legal Adviser for Political and Military Affairs at the State Department. Obviously, the views she articulates in this piece are her own. But given her work experience, I wouldn’t be surprised if they don’t give some insight (pun intended) to the State Department’s internal arguments on the legality of the mission to kill Osama Bin Laden. In any case, here’s a few highlights from her argument:

International law restricts the situations in which a state may use force in the territory of another state. There are three situations in which such an act is lawful: pursuant to U.N. Security Council authorization under Chapter VII of the U.N. Charter; in self-defense; or (at least in some cases) with the consent of the territorial state. Once a state concludes that it has a right of self-defense, it must assess what specific types of actions it can take in response, including whether it can use force. The standard inquiry has three elements: whether the use of force would be necessary; whether the level of force contemplated would be proportionate to the initial armed attack (or imminent threat thereof); and whether the response will be taken at a point sufficiently close to the armed attack (i.e., whether it would be immediate).

In determining whether it is necessary to use force against a non-state actor operating in another state’s territory, the victim state must consider not just whether the attack was of a type that would require force in response, but also the conditions within the state from which the non-state actor launched the attacks. In this latter evaluation, states, absent consent, employ the “unwilling or unable” test to assess whether the territorial state is prepared to suppress the threat. If the territorial state is either unwilling or unable, it is reasonable for the victim state to consider its own use of force in the territorial state to be necessary and lawful (assuming the force is proportional and timely). If the territorial state is both willing and able, the victim state’s use of force would be unlawful. . . .

Based on an examination of state practice, it is possible to ascertain a few key principles that the international community might expect a state using force (the “acting state”) to follow. The principles might include requirements that the acting state: (1) ask the territorial state to address the threat and provide adequate time for the latter to respond; (2) reasonably assess the territorial state’s control and capacity in the region from which the threat is emanating; (3) reasonably assess the territorial state’s proposed means to suppress the threat; and (4) evaluate its own prior interactions with the territorial state. However, an important exception to the requirement that the acting state request that the territorial state act arises where the acting state has strong reasons to believe that the territorial state is colluding with the non-state actor, or where asking the territorial state to take steps to suppress the threat might lead the territorial state to tip off the non-state actor before the acting state can undertake its mission. . . .

Applying the Test . . .

Based on the facts that have come to light to date, the United States appears to have strong arguments that Pakistan was unwilling or unable to strike against Bin Laden. Most importantly, the United States has a reasonable argument that asking the Government of Pakistan to act against Bin Laden could have undermined the mission. The size and location of the compound and its proximity to Pakistani military installations has cast strong doubt on Pakistan’s commitment to defeat al Qaeda. The United States seems to have suspected that certain officials within the Pakistani government were aware of Bin Laden’s presence and might have tipped him off to the imminent U.S. action if they had known about it in advance. . . . Pakistan might argue that it would have been able to stage an effective mission against the compound, or that the United States at least should have constructed the mission as a joint operation, given that the two countries work closely together in other intelligence and military contexts. It also could point to the fact that it conducted searches for al Qaeda leaders in Abbottabad in 2003 and in subsequent years, and that it passed on information about the 2003 search to U.S. officials. On balance, however, Pakistan’s defense of its sovereignty in this case, while understandable from a political perspective, seems weak as a matter of international law.

6 Responses

For those who don’t read the Insight piece, Ashley’s very well-done (in my humble opinion) article on the unable or unwilling test is coming out in the Virginia Journal of International Law next year. Its “forthcoming” cite appears in her footnotes.

5.06.2011
at 2:29 pm EST John C. Dehn

I agree. Terrific, timely piece at ASIL and VJIL did a smart thing taking the academic article.

We’ll have to wait for the article to come out to see if she has any more authority in the sources of international law than she cites here for the proposition that “international law traditionally requires the state that suffered the armed attack to assess whether the territorial state is “unwilling or unable” to unilaterally suppress the threat.” I think its noteworthy that even the Brownlie source that she does cite, assumedly as a persuasive account of the existence of customary law, states that this test has been espoused by states only on “a limited number of occasions.” Now, that was written in 1958, so we will need a much more updated accounting of state practice and opinio juris. But my impression, and my guess is that she will not be able to present persuasive evidence of the existence of customary international law establishing the “unwilling or unable” test in the jus ad bellum context. Such a test seems to me far too vague and unworkable, and so clearly in the sole interest of powerful western states, that I doubt there would ever be sufficient state practice to establish it.
Dan Joyner

5.06.2011
at 4:02 pm EST Dan Joyner

Not to hijack the comment thread, but this is tangentially relevant to Ken and John’s point…It may just be my personal sense, but I think VJIL (based on quality of articles published in the last 5 years) has surpassed Harvard Int’l and now sits as the #2 international law journal behind Yale.

Now as an untenured professor would I choose VJIL over Harvard? That would be hard, mostly b/c I’m not sure if my intuition is correct, and I’m certain that my non-international law colleagues wouldn’t understand my nuanced opinion. But, I find myself reading VJIL more frequently than HJIL. Of course, this could be because they are publishing more IHL/IHRL/ICL pieces than HJIL.

The best thing about Deeks’ Insight is that she seems to recognize, unlike many others, that the jus ad bellum issue goes solely to whether the operation violates Pakistan’s sovereignty; it says nothing about which area of law — IHL or IHRL — governs the killing itself, and nothing about whether that killing was lawful under the applicable regime. Progress!

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